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U.S. v. DESUMMA

March 26, 1999

UNITED STATES OF AMERICA,
v.
FRANK DESUMMA.



The opinion of the court was delivered by: DuBOIS, District Judge.

  ORDER AND MEMORANDUM

ORDER

AND NOW, to wit, this 26th day of March, 1999, upon consideration of defendant Frank DeSumma's Motion to Suppress Statements and All Physical Evidence (Document No. 64, filed January 29, 1999), and the related submissions of the parties, following a Hearing and Oral Argument on February 19, 1999, IT IS ORDERED, for the reasons set forth in the accompanying Memorandum, that defendant Frank DeSumma's Motion to Suppress Statements and All Physical Evidence is GRANTED IN PART and DENIED IN PART, as follows:

1. That part of the Motion to Suppress which seeks to suppress the statement of Frank DeSumma with respect to the presence of a weapon is GRANTED;

2. That part of the Motion to Suppress which seeks to suppress the weapon seized from the vehicle of defendant, Frank DeSumma, as a result of his statement is DENIED.

MEMORANDUM

I. FACTS AND PROCEDURAL HISTORY*fn1

On September 29, 1998, four Special Agents of the Federal Bureau of Investigation ("FBI") arrested defendant Frank DeSumma pursuant to a complaint and warrant.*fn2 On October 28, 1998, a Federal grand jury returned a nine-count Indictment against DeSumma and two co-defendants, Peter C. D'Amelio and George Delia, for extortionate debt collection and weapons violations. On November 5, 1998, defendants pled not guilty to all counts of the Indictment.*fn3 On November 16, 1998, the Court denied defendant DeSumma's Motion for Pre-trial Release.

On January 29, 1999, DeSumma filed a Motion to Suppress Statements and All Physical Evidence; the government responded on February 17, 1999. On February 19, 1999, the Court held a hearing and oral argument on the motion. The government called one witness, Special Agent S.J. Giarrizzo of the FBI. The following facts surrounding defendant's arrest were established.

On September 29, 1998, Special Agent Giarrizzo was part of a four-person team of FBI agents charged with executing an arrest warrant for the defendant. Special Agent Giarrizzo stated that to his knowledge neither he nor the other members of the arrest team had any paperwork with them other than the arrest warrant. The team of agents went to Club Ricochet, a "gentleman's club" on Oxford Valley Road in Lower Bucks County. While an agent entered the club to find the defendant the rest of the team waited outside in the club's parking lot.

After the agent used a "ruse" to get the defendant out of the club and into the parking lot, at least two of the agents who waited in the parking lot identified themselves as federal officers. Special Agent Giarrizzo told defendant that he was under arrest. At this point, the defendant was "just a few paces, maybe ten or fifteen feet" from his car, and he was surrounded by the arrest team. N.T. at 48. Although the arrest was "instantaneous" with the defendant's emergence from the club, id. at 55, in a few seconds' time he reached his car, at which time he was stopped by Special Agent Giarrizzo. Defendant attempted to place his hands on the hood of his vehicle, but he was told that that was not necessary.*fn4 He was then handcuffed and subjected to a pat-down search by Special Agent Giarrizzo. As the agent was conducting the pat-down search, he asked the defendant whether he had any weapons. Defendant responded that he had a weapon inside of his car, indicated that his car was locked with a key-number lock system, and provided the key number to unlock the car. While searching the vehicle the agents found the gun. At no point in this sequence did the agents advise the defendant of his Miranda rights. Special Agent Giarrizzo stated that they searched the vehicle only because of defendant's response to his question about weapons. N.T. at 60.

In the suppression motion, defendant argues that his statement to Special Agent Giarrizzo that there was a weapon in his car was illegally obtained because he had not been advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is defendant's position that the weapon seized from his vehicle was obtained as a direct result of this violation, and thus must be suppressed under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The government argues that this case fits within the "public safety exception" to Miranda established in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In the alternative, the government argues that the search of the car was valid under the "automobile exception" to the search warrant requirement established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 ...


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